Rowe v. Google LLC

in this Court's Individual Rules.

parties shall also file a joint letter by April 27, 2020, explaining (1) the discovery that has been completed; (2)

discovery that is remaining; and (3) how the remaining discovery is affected by the COVID-19 pandemic.

April 22, 2020

New York, New York

LORNA G. SCHOFIEL

UNITED STATES DISTRICT JUDGE

Re: Ulku Rowe vy. Google LLC, Case No. 19-cv-08655 (LGS)\(GWG)

Dear Judge Schofield:

We represent Plaintiff Ulku Rowe in the above-referenced matter. We write pursuant to Rule

Section III.C.3 of Your Honor’s Individual Practices and Local Rule 37.2 to request a pre-motion

conference in anticipation of Plaintiff's motion to compel the production of discovery relating to (1)

comparator evidence; (2) complaints of discrimination; and (3) electronically stored information

(“ESI”). In addition, the Parties jointly request an extension of the discovery schedule.

Plaintiff served requests for production of documents on January 21, 2020, see Exhibit 1, and

her First Set of Interrogatories on February 11, 2020, see Exhibit 2. Defendant served its Objections and

Responses to Plaintiffs discovery requests on February 28, 2019, see Exhibit 3, and its Responses to

Plaintiff's First Set of Interrogatories on March 12, 2020, see Exhibit 4. The Parties met and conferred

regarding outstanding discovery issues via telephone on March 3, 2020. On March 25, 2020, Plaintiff

wrote to Defendant describing 1n detail numerous deficiencies in Defendant’s discovery responses and

production. See Exhibit 5. Defendant responded by letter on April 16, 2020, see Exhibit 6, and on April

20, 2020, the Parties met and conferred via telephone. The following issues remain unresolved.

Comparator Information

Plaintiff seeks discovery that will enable her to properly identify comparators and establish her

equal pay, discrimination, and retaliation claims. See Request Nos. 6, 10-14, 17, 19, and 21 and

Interrogatory 1. While Defendant has produced some information related to four male comparators,

Defendant has not identified and produced al/ responsive information for a// comparators with whom

Plaintiff is similarly situated. In connection with her New York Equal Pay Law claims, Plaintiff is

entitled to discovery on men who performed equal work requiring equal skill, effort, and responsibility,

and performed under similar working condition, see N.Y. Labor Law § 194 (1), while under the New

York City Human Rights Law, Plaintiff is entitled to discovery related to a broader group: men who

were treated more favorably than Plaintiff in the terms and conditions of employment. See N.Y.C.

Admin. Code § 8—107(1)(a); see also Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)

(noting in the Title VII discrimination context, employees “need not be identical to that of another

for the two to be similarly situated” and “[w]hether two employees are similarly situated

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ordinarily presents a question of fact for the jury.”); McGuinness v. Lincoln Hall, 263 F.3d 49,

53-54 (2d Cir. 2001) (“A plaintiff is not obligated to show disparate treatment of

an identically situated employee.”).

Defendant objected to the comparator requests claiming Plaintiff has not demonstrated that these

individuals are true comparators. See Exhibit 6. Defendant misunderstands the purpose of discovery:

“the purpose of discovery here is, in part, to help identify the universe of proper comparators.”

Vuona v. Merrill Lynch & Co., No. 10 Civ. 6529, 2011 WL 5553709, at *4 (S.D.N.Y. Nov. 15,

2011); see also Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 753 (6th Cir. 2012) (“The refusal of a

defendant to disclose requested comparator information denies plaintiff the opportunity to determine

whether the evidence actually reveals comparator status and different treatment, critical elements of the

claim that the trier of fact must determine.”). Plaintiff requests that the Court compel Defendant to

identify and produce responsive information for all potential comparators.

Complaints of Discrimination

Plaintiff requested production of documents and information related to any internal or external

complaints of gender discrimination, including pay or promotion discrimination, and/or retaliation. See

Request No. 19. Defendant has unreasonably narrowed its response to only complaints against two of

Plaintiff’s managers. Further, Defendant has refused to conduct a search for documents related to

Plaintiff’s own complaints that may exist outside of its internal HR systems.

This Circuit has repeatedly found that complaints of the same or similar type of discrimination

alleged by plaintiffs are relevant to an individual plaintiff’s prima facie case of disparate treatment. See

Sasikumar v. Brooklyn Hosp. Ctr., No. 09 Civ. 5632, 2011 WL 1642585, at *3 (E.D.N.Y. May 2,

2011) (“[C]ourts in this circuit have repeatedly found similar complaints of discrimination by

corporate employers to be relevant and discoverable”); Louison v. Blue Cross Blue Shield of

Greater New York, No. 9 Civ. 1820, 1990 WL 108347, at *1 (S.D.N.Y. July 23, 1990) (granting

plaintiff’s request for other complaint of discrimination); Chambers v. TRM Copy Ctrs Corp., 43

F.3d 29, 37 (2d Cir. 1994). Complaints of gender discrimination against high-level decision makers

within Google are probative as to whether individuals involved in the leveling, hiring and promotion

decision possessed any discriminatory intent. In addition, evidence of complaints or investigations

conducted is relevant to Google’s knowledge of and failure to remedy on-going gender discrimination

concerns, which substantiate Plaintiff’s claim of willfulness and her request for damages. See Ri Sau

Chan v. N.Y. Downtown Hosp., No. 03 Civ. 3003, 2004 WL 1886009, at *4 (S.D.N.Y. Aug. 23, 2004)

(“Evidence relating to company-wide practices may reveal patterns of discrimination against a group of

employees, increasing the likelihood that an employer’s offered explanation for an employment

decision regarding a particular individual masks a discriminatory motive”); see also Pollis v. New Sch.

for Soc. Research, 132 F.3d 115, 120 (2d Cir. 1997) (finding evidence of knowledge of disparity and

failure to remedy sufficient to support the jury’s finding of a willful violation of the Equal Pay Act).

Plaintiff respectfully requests that the Court order Defendant to produce information regarding

internal and external complaints of gender discrimination, as well as Plaintiff’s own complaints

of discrimination, and timely produce a privilege log, if privilege is asserted.1

1 Because Defendant has not produced a privilege log, though it has indicated its intent to do so, Plaintiff

respectfully reserves her right to challenge the withholding of any documents identified on the privilege log.

April 21, 2020

Page 3 of 3

ESI Searches

Plaintiff proposed a tailored list of ESI search terms and custodians, designed to identify

information responsive to Plaintiff's requests (see Attachment to Exhibit 5), but Defendant has thus far

refused to conduct an ESI search of custodians. Instead, Defendant has relied on employees’ manual

searches to identify and collect information, which has resulted in a patently deficient production. The

deficiencies include: (a) incomplete comparator information (Exhibit 5, Req. Nos. 6, 10-14, 17, 19,

21); (b) incomplete record of complaints of discrimination (id., Req. Nos. 8, 18-20, 24); (c)

incomplete information relevant to the commencement of Plaintiff's employment (id., Req. No. 1);

(d) withheld pay studies (id., Reg. Nos. 9, 20); (e) incomplete information related to consideration of

individuals for Vice President of Financial Services/Head of Financial Services position (id., Req.

No. 22); (f) incomplete information regarding Plaintiff's change of role in April 2019, (id., Req. No.

30); and (g) individuals with knowledge related to Plaintiffs claims (Interrogatory Nos. 1, 4).

Courts have recognized that “custodians cannot be trusted to run effective searches,

because designing legally sufficient electronic searches in the discovery . . .context[ | is not part

of their daily responsibilities.” Nat'l Day Laborer Org. Network v. U.S. Immigration and

Customs Enforcement Agency, 877 F.Supp.2d 87, 108 (S.D.N.Y. 2012). Accordingly, search

terms are often used in ESI discovery, and application of Plaintiff's limited search terms to the

relevant custodians in this case would ensure that all relevant documents are appropriately

captured and timely produced. See Lightsquared Inc. v. Deere & Co., No. 13 Civ. 8157, 2015

WL 8675377, at *8 (S.D.N.Y. Dec. 10, 2015); see also Sedona Conf. J. 189, 200 (2007) (“[bly

far the most commonly used search methodology today is the use of “keyword searches” of full

text and metadata as a means of filtering data for producing responsive documents in civil

discovery.”). Accordingly, Plaintiff requests an order requiring Defendant to perform an ESI search

using the terms set forth in Plaintiff's March 25 proposal.”

Extension of the Discovery Schedule

Due to the impact of the current COVID-19 pandemic and in light of outstanding discovery

disputes that are unlikely to be resolved before May 4, when document discovery is scheduled to close,

the Parties respectfully request an extension of the discovery schedule. This is the second request for an

extension and as it affects the remaining deadlines of the scheduling order, the Parties have attached a

proposed Amended Schedule for the Court’s consideration. See Exhibit 7.

Cara E. Greene

Encl.

ce: All counsel of record (by ECF)

? Plaintiff has requested that Defendant provide Plaintiff with an initial hit count, so that revisions can be made to

the search terms, if necessary, to ensure compliance with the Court’s Individual Practices with respect to the amount

of time spent in connection with ESI review and production.